Harry Litman teaches constitutional law at the University of California at San Diego. He has served as U.S. attorney for the Western District of Pennsylvania and deputy assistant attorney general.
Following the implosion of Paul Manafort’s cooperation agreement with special counsel Robert S. Mueller III , a lawyer for President Trump casually announced that Manafort’s lawyers had been briefing Trump’s lawyers about his sessions with the Mueller team all along.
This revelation, far from routine, in fact is jaw-dropping — and it has significant legal and political implications.
First, and least, it represents another breach of the demolished cooperation agreement that Manafort entered into to avoid the expense and near-certain conviction in a second trial.
Some defense attorneys have asserted that it is common for cooperating witnesses to share information with other suspects (as we know the president is here) or putative defendants. Not so. Once a witness enters into a cooperation agreement with the government — which he does for the very valuable consideration of a potential reduction in sentence — he has agreed contractually to a full, no-holds-barred provision of information. The government in turn will frame questions and possibly share evidence with the witness, all of which reveal the government’s thinking. The universal understanding is that the witness will not run back and reveal the government’s case to potential suspects.
A witness is normally free to talk to defense attorneys if he chooses. A cooperator is not (and that holds whether it is expressly spelled out in the agreement).
Second, whatever Team Trump may assert, the conversations between some combination of Manafort, Trump and the lawyers for both of them were not privileged, and Mueller is entitled to know their contents.
Defendants are entitled to enter into privileged conversations with their own lawyers, and the government cannot force the attorney to reveal them. This is entirely proper and part of the constitutional guarantee of effective assistance of counsel. A corollary to this principle permits co-defendants and potential defendants to share certain information — essentially the same information that would be shielded by the attorney-client privilege for either of them — on the grounds that they have a “common interest.” This interest is generally set out in a joint defense agreement, or JDA, which confirms the umbrella of covered discussions.
Crucially, however, the JDA can operate only among parties who , in fact, have a common interest. A defendant cannot simply pick and choose people he wants to talk to and thereafter claim that a conversation is privileged. And when Manafort entered into the cooperation agreement with the government, he ceased to have a common interest with other defendants, including the president, as a matter of law. As former U.S. attorney Chuck Rosenberg put it, having signed with the Yankees, he couldn’t give scouting reports to the Red Sox.
Thus, Mueller is fully entitled to subpoena Manafort counsel Kevin Downing and whichever Trump counsel spoke with him (one trusts it wasn’t Emmet Flood, who is too savvy for such shenanigans) and force them to reveal every word of the discussions.
But that’s where political considerations possibly intercede. It is possible that Trump’s counselors bank on Mueller staying his hand to avoid loud (if bogus) cries of foul play from Trump apologists, renewed rants from Trump about a witch hunt and even, possibly, a refusal from acting attorney general Matthew G. Whitaker to permit the subpoenas to go forward.
Finally, the open pipeline between cooperator Manafort and suspect Trump may have been not only extraordinary but also criminal. On Manafort and Downing’s end, there is a circumstantial case for obstruction of justice. What purpose other than an attempt to “influence, obstruct, or impede” the investigation of the president can be discerned from Manafort’s service as a double agent? And on the Trump side, the communications emit a strong scent of illegal witness tampering (and possibly obstruction as well).
Proving those charges would require a fight. The lawyers would be expected to assert privilege, and cries of overreach would sound from the White House and pro-Trump journalists. Whitaker could impede or countermand the effort.
But it’s critical to understand the stakes of the battle. Even more than the president’s potential criminal liability, there is a set of burning questions about exactly what happened in 2016, the extent to which Russian efforts to influence the presidential election found purchase in the United States, and what part was played by high-level Trump campaign officials or the president himself. It is intolerable to consider that the truth of these consequential matters would be smothered and kept from the American people indefinitely. But that’s exactly what the president’s overall strategy aims to do, and with the support, at least tacitly, of a complicit still-Republican-majority — for now — Congress. Is there no one in the GOP with the guts to stand up to the president and the resolve to see that the truth will out?